2010 (9) TMI 1012 - AT - Central Excise

Summary

Issues involved: Appeal against denial of refund claim, challenge of assessment of return, unjust enrichment, communication of decision by Central Excise officer, relevance of certificate issued by Chartered Accountant.

Summary:
The appellant filed an appeal against the denial of their refund claim due to not challenging the assessment of their return. The appellant mistakenly debited excess duty in their PLA Account, filed their ER.1 return, and later filed a refund claim with a certificate from a Chartered Accountant. The lower authorities rejected the refund claim, stating that without challenging the ER.1 return, the refund claim cannot be entertained. The appellant argued that no assessment order was communicated to them, thus no challenge was possible. The appellant also relied on a Tribunal decision and a High Court case regarding the certificate's validity. The JDR contended that the refund claim was rightly rejected based on previous court decisions.

Upon examination, the Tribunal found that no decision or order was communicated to the appellant, as required under Section 35 of the Central Excise Act. The Tribunal cited previous cases to support the view that without a communicated decision, challenging it is not possible. The Tribunal distinguished the present case from previous cases where orders were communicated. The Tribunal set aside the lower authority's decision and allowed the appeal with consequential relief.

Regarding the certificate issued by the Chartered Accountant, the Tribunal found that the lower authorities unjustly rejected the refund claim based on the bar of unjust enrichment clause. The Tribunal referenced a High Court case where the authenticity of such a certificate was upheld. Since the authorities did not dispute the certificate's validity, the rejection of the refund claim was deemed incorrect. Consequently, the impugned order was set aside, and the appeal was allowed with consequential relief.